In March 2015, we sent to the permanent Bureau a contribution showing that surrogacy is contrary to international human rights law and proposing the creation within the UN of a Convention on the International Abolition of Surrogacy. We also requested to be consulted as part of the current work of the HCCH, in order to represent the views of civil society.

Since our contribution has not been taken into account so far, we ask once again for our arguments to be considered by the Experts’ Group on Parentage / Surrogacy.

We ask for a radical change of perspective in the way the issue of surrogate motherhood is dealt with.

Surrogacy is a huge market of several billion dollars, entirely built on the ownership of the female body and on the transformation of children into commodities. It is not a reproductive technology (technically, it is nothing more than in vitro fertilization) but an exploitative social practice, which has to be abolished.

From a legal point of view, we would like to draw to the attention of the Experts’ Group the blatant contradiction between the mechanisms at stake in surrogacy and the core principles of the Hague Convention on Intercountry Adoption. In order to prevent the trafficking and buying of reproductive capacities, Article 4 of this Convention provides, as a fundamental rule, that the consent of the birth parents, in particular the consent of the mother, can only be given after the birth of the child (prohibition of prior arrangements and of any planned abandonment of the child), and cannot been obtained through payment or compensation of any kind. However, the existence of such arrangements and financial compensations are a core component of surrogacy: the price of the service provided by the mother, and therefore the price of the child to be born, is the object of a preliminary agreement. There is hence a blatant contradiction between surrogacy and the philosophy underlying the Convention on Intercountry Adoption, a contradiction which cannot be covered up by any legal or semantic artifice. The Hague Conference cannot, without being inconsistent, encourage on the one hand what it rightfully opposes on the other hand.

Moreover, surrogacy contradicts many international conventions on the protection of human rights, e.g. the International Convention on the Rights of the Child and the Convention on the Elimination of Discrimination against Women, as demonstrated in the study enclosed / attached.

Surrogacy is the sale of a child, in the meaning of the Additional Protocol to the Convention on the Rights of the Child. This protocol defines the sale of children as follows: “Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration ».

Such a transaction is precisely at the core of surrogacy, which is based on the giving away of the child by the mother to the clients, in exchange for remuneration or “compensation”. This payment has been previously agreed upon (even in countries where commercial surrogacy is officially forbidden) in the form of a compensation for vaguely defined expenses or “loss of remuneration”. The object of this commercial exchange is not only the pregnancy or delivery, it is the child itself, whose maternal parentage is transferred to the commissioning parents. Whatever ways language is deployed to artificially cover up this reality, it cannot be concealed.

We also invite the Experts, and more widely the Member States, to see beyond the apparent neutrality of legal terminology, and become aware of the extreme violence of a system in which women from poor or humble backgrounds, in order to fulfil pre-arranged contracts, renounce not only the faculty of making their own decisions concerning their health (which they jeopardize), but also lose any real capacity of changing their minds and being recognised as the mothers of the children they have borne for nine months and have given birth to. And this, either because of anticipated filiation in application of the law or the contract (as is done in California), or because of the preference given to commissioning parents by courts, despite laws officially requiring the surrogate mother’s consent after the birth (as is the case in the United Kingdom). Surrogacy is then not merely programmed abandonment, but in many cases forced abandonment. The mother—the woman who has borne the child—is nothing more than a uterus. Such takeover of an individual’s life and body has not been seen since the abolition of slavery.

This is something more and more countries are coming to understand: having fallen prey to this new traffic, and faced on their own territories the horror of this exploitation of the poor to the profit of rich Westerners, they have decided to forbid surrogacy unconditionally (Thailand for commercial surrogacy, Cambodia), or at least to ban it for foreigners (India, Nepal, Mexico).

This is why we reiterate our call to the members of the Experts’ Group of the Hague International Conference, to whom we ask:

1. to renounce working on any instrument which would tend to organise surrogate motherhood internationally or would favour mutual recognition in this domain;

2. to recognize the necessity of a Convention on the Abolition of Surrogacy, similar to what was done against slavery and practices analogous to slavery with the Conventions of 1926 and 1956, and to recommend that the Member States of the Conference engage in this direction within the United Nations, which is the relevant organisation in this respect.